Appeal from the Superior Court of the District of Columbia (Hon. Brook Hedge, Trial Judge)

Argued May 12, 2000

In this suit arising from a landlord's refusal to rescind a notice barring an individual from entering the plaintiff-appellant's apartment, the issue is whether the trial judge correctly dismissed under Super. Ct. Civ. R. 12 (b)(6) appellant's claims of breach of the lease agreement, intentional infliction of emotional distress, and violation of constitutional rights. As to the first two claims, we hold that in terminating the case the judge erroneously relied on assertions of fact beyond those alleged in the complaint, in a manner that denied appellant a reasonable opportunity to counter those assertions. We reverse as to the claim of breach of the lease agreement but sustain on other grounds the dismissal of the intentional infliction claim. We also affirm the dismissal of appellant's constitutional and related federal statutory claims.

I.

Appellant (hereafter Carey) sued her landlord, Edgewood Management Corporation (Edgewood), for damages and declaratory and injunctive relief, asking the court to prohibit Edgewood from barring entry of invitees to her apartment. Specifically, she claimed that Edgewood unlawfully was continuing to bar the father of her children, Ernest Carson, from her apartment. According to the complaint, Carey had asked Edgewood in May of 1995 to bar Carson from the apartment following an argument she had had with him, but that she subsequently reconciled with him and then asked Edgewood to rescind the barring notice. Edgewood lifted the barring order in May 1996 but in June 1997, despite Carey's repeated objections, issued another notice barring Carson from the property. Carey alleged that Carson was the only family member or friend available to help her care for her children while she left the apartment on necessary business, and that his exclusion from the premises threatened her with serious consequences including removal of the children from her custody by the District of Columbia. Carey asserted that the barring notice breached provisions of her lease agreement with Edgewood, *fn1 amounted to intentional infliction of emotional distress, and violated her first amendment right to associate and fifth amendment right to due process.

Carey also moved for a preliminary injunction against the barring order. In response, Edgewood cited legal authority recognizing its right and duty as a landlord to maintain the security of the multi-unit apartment complex, and evidence of Carson's "long history of encounters with the D.C. Metropolitan Police," including most recently his arrest for possession of cocaine with intent to distribute it while in Carey's apartment. *fn2 Edgewood further cited "numerous incidents involving Carson which put [Edgewood] on notice that Carson is dangerous, involved in illegal activity and a threat to [Edgewood's] tenants, occupants, visitors and staff."

Shortly thereafter, Edgewood moved to dismiss the complaint under Super. Ct. Civ. R. 12 (b)(6) for failure to state a claim upon which relief could be granted. The accompanying memorandum did not refer to the factual representations about Carson in Edgewood's opposition to a preliminary injunction. Instead, as to the claimed breach of the lease, Edgewood argued that the complaint failed for lack of specificity: it neither quoted nor had attached to it the lease agreement; it "fail[ed] to establish the factual predicate for [the] claim"; and it "fail[ed] to assert either non-performance or repudiation of any identified lease term."

The trial judge, without a hearing, granted the motion to dismiss on grounds partly different from those advanced by Edgewood. The judge acknowledged that the complaint specified a breach of various sections of the lease, including discrimination on the basis of marital status, but ruled that Edgewood's right as landlord to exercise control and ensure protection of its property and tenants was confirmed by the lease and case law, and pointed to the information documented in Edgewood's opposition demonstrating Carson's "violent past," especially his "aggressive and threatening behavior against other occupants of defendant's complex." Given the indications of Carson's "volatile nature" and the fact that he was "known to be disruptive," the judge concluded that Edgewood would have "place[d] itself at risk [of legal liability] if it did not take steps to prevent Mr. Carson, a foreseeable known risk, from injuring defendant's occupants." *fn3

II.

This court recently had occasion to restate the purpose and limitations of a Rule 12 (b)(6) motion to dismiss:

Under Super. Ct. Civ. R. 8 (a) and (e), a plaintiff need only plead sufficient facts such that the complaint "fairly puts the defendant on notice of the claim against him." A Rule 12 (b)(6) motion tests the legal sufficiency of the complaint and "admits all facts well pleaded but contests the plaintiff's right to any recovery based on those facts." Accordingly, a defendant raising a 12 (b)(6) defense cannot assert any facts which do not appear on the face of the complaint itself. If any such matters are presented to the court, it must treat the motion as one for summary judgment as provided in Super. Ct. Civ. R. 56. Herbin v. Hoeffel, 727 A.2d 883, 886 (D.C. 1999) (citations and footnote omitted). Rule 56, in turn, permits the grant of summary judgment if there are no material facts in dispute and the movant is entitled to judgment as a matter of law. But before a Rule 12 (b)(6) motion may be converted to one for summary judgment, "the express language of the Rule requires that `all parties be given a reasonable opportunity to present material relevant to the Rule 56 motion.'" Kitt v. Pathmakers, Inc., 672 A.2d 76, 79 (D.C. 1996) (quoting Vincent v. Anderson, 621 A.2d 367, 372-73 (D.C. 1993)).

Edgewood does not dispute that the trial judge relied on facts outside the complaint in granting the motion to dismiss. Nor does it argue that either the motion to dismiss or Edgewood's opposition to Carey's motion for a preliminary injunction put her on the required notice of need to present factual material countering the information about Carson's violent past on which the trial judge relied. With regard to Carey's breach of contract claim, therefore, this appeal would seem to be controlled by decisions such as Kitt, supra, where we found the grant of the Rule 12 (b)(6) motion to be error because it was "undisputed that the trial judge neither informed the parties that he would be relying upon . . . facts [outside the complaint], nor gave them an opportunity to present additional factual material." 672 A.2d at 79; see also Herbin, 727 A.2d at 886-87 ("for the trial court to have relied on . . . facts [not appearing in the complaint], without notifying Herbin that it intended to do so and giving him an opportunity to present additional material relevant to a summary judgment motion, is reversible error").

Edgewood contends, however, that the judge's repeated references to Carson's violent proclivities were in essence surplusage because the real reason she dismissed was Carey's failure even to allege that the barring order was issued without adequate factual cause. According to Edgewood, Carey's breach of contract claim was based on her putative right to 30 or 60 days' notice of a new limitation on her lease terms (including the right to have guests) regardless of the security risk a particular invitee posed to other tenants. And, Edgewood asserts, the trial judge simply recognized the absence in law (and in any lease provision cited ...

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